Sharp rebuke for Japan as Dreyfus appears in whaling case

Hobart correspondent for Fairfax Media

Federal Attorney-General, Mark Dreyfus, QC, has sharply dismissed a Japanese claim that Australia is on a crusade against Japan over whaling before the International Court of Justice.

Mr Dreyfus, appearing before the court in The Hague, said the claim was untrue and offensive.

"It speaks volumes for the weakness of the Japanese case," he told the court.

Japan opened its defence of the case to halt its Antarctic "scientific" whaling with a suggestion that Australia was attempting to use international law as an instrument to impose its cultural preferences.

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"The days of civilising missions and moral crusades are over," counsel for Japan, Payam Akhavan, of McGill University, said last week.

Mr Dreyfus told the court in The Hague early on Wednesday (Australian time) that he could only assume the claims were an attempt to deflect attention away from the true nature of Japan's whaling program, known as JARPA II.

"This case is not about civilising missions or whether the Australian public like or dislike the consumption of whale meat," he said. "This case is about one country's failure to comply with its legal obligations not to conduct commercial whaling."

Australia has told the court that the JARPA II program is commercial whaling, banned by the International Whaling Commission, but cloaked in the "lab coat" of science.

Mr Dreyfus flatly rejected a suggestion by Japan that Australia outsourced its maritime duties in the Antarctic to the activists of Sea Shepherd, who are involved in a conflict with the whaling fleet.

This was "wholly untrue and ridiculous", Mr Dreyfus said, pointing to warnings by the Federal Government to all parties to comply with laws on maritime safety.

He said Japan's counsel Alain Pellet, of Paris Ouest University, had made extensive derogatory attacks on Australia for its moves over the years against the Japanese program in the International Whaling Commission (IWC).

"The tone, content and extent of these attacks . . . is a transparent attempt to mask the lack of legal and scientific substance in Japan's case," he said.

Mr Dreyfus said that during the hearing of the case Japan failed to dent in any way the credibility of a standard of science outlined by Australia's expert witness, Marc Mangel, of the University of California.

"(Japan is) unable to produce any criteria in which to cloak JARPA II with any vestige of scientific credibility," Mr Dreyfus said.

As Australian counsel moved to extend the attack on Japan's whaling, James Crawford, SC, of Oxford University said JARPA II was not a program within the meaning of the IWC's article eight on scientific research.

Professor Crawford said it was instead a program conducted for commercial purposes, which he suspected had included a humpback whale quota, so far unused, as a diplomatic bargaining tool.

The number of minke whales to be taken, 850 plus or minus 10 per cent, "seems to have been worked out on the back of an envelope", Professor Crawford said.

"It's not too much to say that Japan's scientific case has come apart at the seams," he said.

Australia continues its final addresses to the 16 ICJ judges later on Wednesday, Australian time.